One of the tools in the arsenal of the workers’ compensation insurance carrier in Pennsylvania, in their fight to take away benefits from injured workers, is the “Labor Market Survey” (LMS), also known as an “Earning Power Assessment” (EPA). Once an injured worker in PA has shown an entitlement to workers’ comp benefits, then the insurance carrier can use an LMS or EPA to show there are jobs available in the general community that the injured worker could get if he or she wished. A “vocational expert” is used to locate these jobs. This is typically followed by a Petition for Modification, seeking a reduction of workers’ compensation benefits based on the amount these potential jobs would pay.
As we discussed several years ago on this blog, the Supreme Court of Pennsylvania, in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), found that a defense to one of these Modification Petitions is for the injured worker to show that he or she applied to these supposed “open and available” jobs and did not receive an offer of employment. This is a critical part of defending these Modification Petitions (typically). However, the Court in Shoap did not specify exactly what the injured worker had to show to refute that the jobs were open and available (or how the insurance company could overcome the injured worker not receiving an offer of employment).
This brings us to a recent decision from the Commonwealth Court of Pennsylvania in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Company). Here, the injured worker suffered serious damage to her neck and shoulder. In fact, the injured worker required a cervical fusion due to the work injury. After that surgery, the workers’ comp insurance company had a LMS/EPA performed. The injured worker attempted to apply for each of the six jobs that were identified (Though she was only able to contact three of the six potential employers, and only able to actually apply for two of the jobs, she had a vocational expert testify regarding all six jobs). No offer of employment was received by the injured worker.
In the Petition for Modification which followed, the Workers’ Compensation Judge (WCJ) found the vocational counselor offered by the workers’ comp insurance carrier more credible than the one offer by the injured worker, or the injured worker herself, and granted the reduction of benefits based on the earnings of the potential jobs in the LMS/EPA. The Workers’ Compensation Appeal Board (WCAB) affirmed this decision on appeal.
Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed the granting of the Modification Petition. The Court specifically rejected the argument of the injured worker that Shoap required a denial of the Petition for Modification because the injured worker testified that she applied for the potential jobs and was not offered employment. While the actions of the injured worker in applying for these potential jobs is relevant (to show whether the jobs were “open and available”), said the Court, such evidence is not dispositive. The WCJ was free to find the contrary evidence more credible, as happened in this case.